Two prominent narratives in tort law scholarship
address the increasing recognition of claims for loss of
emotional tranquility and the expanding privilege to use
force in defense of self and others. This Article explores a
puzzle in tort law that challenges these traditional
accounts. Can force be used to defend against intentional
extreme or outrageous conduct threatening a person with
severe emotional distress? The answer in the case law and
articulated doctrine appears to be "no." The law permits
the use of force to protect dignitary interests, in the case of
offensive battery and assault, but seems to deny the use of
force to protect against IED. No basis for this distinction
appears in the leading theoretical accounts of tort law-
economics, corrective justice, and civil recourse theory.
Rather, the basis of the rules seems to be the childhood
maxim, "Sticks and stones. .," without strong theoretical
or policy justification.
Two implications arise. First, the law continues to
privilege physical security above emotional well-being.
Second, although it is arguably the most successful "new"
tort of the twentieth century, lIED remains a tort whose
boundaries are murky and whose place in tort doctrine is
unclear. The parasitic nature of IED has complicated the
effort to build clear doctrine around all but the most
essential elements of the claim.
Rapp, Geoffrey C.
"Defense Against Outrage and the Perils of Parasitic Torts,"
Georgia Law Review: Vol. 45:
1, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol45/iss1/3